Common use of Non-Commercially Available Successful Respondent Owned Materials Clause in Contracts

Non-Commercially Available Successful Respondent Owned Materials. With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non- exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials by DIR (or, at DIR's direction, its designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Successful Respondent a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Successful Respondent's obligations under Section 9.12, if S Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Successful Respondent may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Successful Respondent shall provide Upgrades, maintenance, support and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to offer or provide Upgrades, maintenance, support or other services, Successful Respondent shall deliver source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Successful Respondent owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Successful Respondent shall notify DIR and describe in detail the features, functionality and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Successful Respondent hall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.

Non-Commercially Available Successful Respondent Owned Materials. With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event Owned Materials that are used to provide the services Services (including all modifications, replacements, Upgrades, enhancements, improvements, Derivative Works, methodologies, tools, documentation, materials materials, configurations, and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in writing prior to Commercially Available during the first use performance of such Materials, Termination Assistance Services: (i) Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non- non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials and the IP Rights therein following the expiration or termination of the term Term or termination of the Service(s) Services for which such Materials were in use. Such license shall be limited to the use Use of such Materials and IP Rights by DIR (or, at DIR's direction, its designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third partyThird Party, services similar to the Services and such other uses permitted therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such MaterialsDIR, DIR (or, at DIR's direction, its designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one ; (1ii) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Successful Respondent a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Successful Respondent's obligations under Section 9.12, if S Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Successful Respondent may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Successful Respondent shall provide Upgrades, maintenance, support support, and other services for such non-commercially available Commercially Available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent substantially similar services. If Successful Respondent fails to offer or provide Upgrades, maintenance, support support, or other services, Successful Respondent shall deliver source code and object code for such Materials to the extent such materials Materials include source code, together with the right to modify, enhance and create derivative works Derivative Works of such materials Materials (provided that, in such event, the licensed Successful Respondent owned materials such Materials shall thereafter be provided on an "“as is" ” basis). Notwithstanding . (iii) In the foregoingevent that Successful Respondent is unable to provide the license provided for by Section 8.6.3(i) despite using commercially reasonable efforts, then during the Termination Assistance Services period, Successful Respondent may offer, and DIR, in its sole discretion, may select a substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support support, or resources resources, and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Commercially Available Materials. If it proposes to do sosuch a substitute, Successful Respondent shall notify DIR and describe in detail the features, functionality functionality, and cost of the each potential substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Successful Respondent hall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.

Non-Commercially Available Successful Respondent Owned Materials. With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non- non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials by DIR (or, at DIR's direction, its designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Successful Respondent a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Successful Respondent's obligations under Section 9.12, if S Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Successful Respondent may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Successful Respondent shall provide Upgrades, maintenance, support and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to offer or provide Upgrades, maintenance, support or other services, Successful Respondent shall deliver source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Successful Respondent owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Successful Respondent shall notify DIR and describe in detail the features, functionality and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Successful Respondent hall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.

Non-Commercially Available Successful Respondent Owned Materials. (a) With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the services Services (including all modifications, replacements, Upgrades, enhancements, improvements, derivative works, methodologies, tools, documentation, materials materials, configurations, and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non- non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials and the IP Rights therein following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials and IP Rights by DIR (or, at DIR's direction, its designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one . (1b) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Successful Respondent a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Successful Respondent's obligations under Section 9.12, if S If Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Successful Respondent may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. . (c) At DIR's request, Successful Respondent shall provide Upgrades, maintenance, support support, and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to offer or provide Upgrades, maintenance, support support, or other services, Successful Respondent shall deliver source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Successful Respondent owned materials shall thereafter be provided on an "as is" basis). . (d) Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Successful Respondent shall notify DIR and describe in detail the features, functionality functionality, and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Successful Respondent hall shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR. (e) Unless DIR has otherwise agreed in advance, DIR, the DIR Customers and Entities that qualify as DIR Customers [and, to the extent applicable, their designee(s)] shall not be obligated to pay any fees or costs in connection with their receipt of the licenses and other rights contained in Section 7.6.2